Earlier this year, the state of Washington completed the west coast trend of creating laws centered around the Ban the Box Movement. Following Oregon (enacted 1/1/16) and California (enacted 1/1/18), Washington moved to ban the box beginning on June 6, 2018.
Washington’s Fair Chance Act will prohibit employers from asking about arrests or convictions before an applicant is determined to be “otherwise qualified” for the position sought. For Washington, an applicant will be considered “otherwise qualified” if he or she meets the basic criteria for the position as laid out in the job advertisement or job description, which would occur before any consideration of a criminal record has taken place.
The law has several provisions that lay out the basis for this fair hiring act, which protects the candidate and gives them the opportunity for consideration (the foundation of every Ban the Box law).
- It will be unlawful for an employer to include any question about prior criminal history on any job application
- There can be no inquiry into past criminal history either orally or in writing
- The employer cannot receive information through a background check
- The employer cannot work to obtain information about an applicants criminal records
Once the aforementioned “otherwise qualified” status has been determined, then the employer has the right under this law to obtain a background check and consider any past criminal behavior.
Like California’s law, job advertisements must be general in nature and written in a way that does not exclude or discourage people with criminal records to apply. Language such as “no criminal background” or “no one with felonies” is considered to be unlawful under this new Act.
If you are a Washington employer, you should make sure you have a clear understanding of this law, and if you are not in compliance, review it with your legal counsel to ensure everything is aligned to avoid monetary fines for each violation.